AZAFR v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZAFR v MINISTER FOR IMMIGRATION

[2015] FCCA 2234

Catchwords:
MIGRATION – Application for judicial review – application of 48A – Court bound by SZRWA v Minister for Immigration and Border Protection [2015] FCA 293.

Legislation:

Migration Act 1958 (Cth), s.48A

Federal Circuit Court Rules 2001 (Cth)

SZRWA v Minister for Immigration and Border Protection [2015] FCA 293

Applicant:

AZAFR

Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:

ADG 453 of 2014

Judgment of:

Judge Harland

Date of Last Submission:

4 August 2015

Delivered at:

Adelaide

Delivered on:

18 August 2015

REPRESENTATION

Counsel for the Applicant:

Paul Charman

Solicitors for the Applicant:

Hamdan Lawyers

Solicitor for the Respondent:

Paul d’Assumpcao

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application for judicial review filed on 4 December 2014 is dismissed.
The applicant is to pay the respondent’s costs fixed in the sum of $2,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 453 of 2014

AZAFR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

The applicant lodged an application for a protection visa on 9 December 2008. His application was refused on 24 October 2010.
The applicant lodged a further application for a protection visa on 28 October 2014. The Minister rejected the further application as being invalid pursuant to s.48A of the Migration Act 1958 (Cth). The applicant seeks to review that decision.
The applicant argues that his original application was lodged before the introduction of the complementary protection criterion which was introduced on 24 March 2012 and is set out in section 36(2)(aa) of the Migration Act 1958.
Section 48A was amended on 28 May 2014. In his written submissions he the applicant’s counsel conceded that this Court “may consider it bound by the decision of Gleeson J in SZRWA v Minister for Immigration and Border Protection [2015] FCA 293” (SZRWA).
The respondent submits that this Court is bound by that decision and must dismiss the application for review.
Counsel for both parties sought that the matter be dealt with in chambers without the necessity for oral submissions. That was sensible given the circumstances.
The facts in this case cannot be distinguished from SZRWA and I am bound by that decision.
I will dismiss the application. The Minister seeks costs in the sum of $2,500. Costs generally follow the event in this jurisdiction. The costs sought are less than the costs allowed for in Part 3, Schedule 1 of the Federal Circuit Court Rules 2001 (Cth), but as there was no oral hearing and the written submissions were brief this is appropriate.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate:

Date: 18 August 2015

CaseChat Overview and Summary

The applicant, AZAFR, sought judicial review of a decision by the Minister for Immigration to refuse to grant a protection visa. The dispute concerned whether the applicant had established a well-founded fear of persecution for a reason specified in the *Migration Act 1958* (Cth). The matter came before Judge Harland of the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the delegate of the Minister had erred in their assessment of the applicant's claims of persecution. Specifically, the Court was required to determine if the delegate had failed to properly consider all relevant evidence, including country information and the applicant's personal circumstances, when assessing the credibility and substance of the fear of persecution. The Court also considered whether the delegate had applied the correct legal test in determining whether the applicant would be at risk of harm if returned to their country of origin.

Judge Harland's reasoning focused on the principles of administrative decision-making and the specific requirements of the *Migration Act* concerning protection visa applications. The Court applied the established legal principle that a delegate must undertake a thorough and objective assessment of the evidence, giving due consideration to all aspects of the applicant's claims. The Court found that the delegate had failed to adequately engage with certain aspects of the applicant's evidence and had not properly considered the implications of the available country information in relation to the applicant's specific circumstances. This failure meant that the decision was affected by jurisdictional error.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for redetermination according to law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established